Category: Courts and Politics

The public service of an “Enemy of the People”

22nd June 2024

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The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act?

12th June 2024

As each party manifesto is published online, and for my own easy amusement, I like to search the pdf for words like “enshrine” and “clear”.

And after that easy amusement, I look for more serious things.

Yesterday the Conservative manifesto was published.

(Many “clears” but disappointingly only one “enshrine”.)

What were the Conservatives were promising (threatening) this time for the Human Rights Act?

 

Doing something to this Act has been a mainstay of every Conservative general election manifesto for as long as I can remember.

But the search return was…

…0/0.

I am a clumsy typist and so I thought: a typo. Let me try again.

And it was still a nil return.

Something must be up with the search function, I thought.

And so I tried “ECHR”.

I even typed out in full the “European Convention on Human Rights” and the “European Court of Human Rights”.

Nil, nil.

How odd.

Could it be that the manifesto actually did not threaten the Act or the Convention?

Well.

A closer look revealed one fairly oblique mention:

Of course, the European Court of Human Rights is not meaningfully a foreign court: it has British judges, British lawyers can appear, British residents can petition the court or appeal cases there, and its caselaw can be relied on in our domestic courts. Foreign law usually is a matter of expert evidence, but Strasbourg case law is part of our own jurisprudence.

It is an international court, of which we are part, rather than a foreign court.

But that is by-the-by.

What is significant is not this sort-of commitment, but the lack of any other promises (or threats).

It is an astonishing, unexpected absence for a Conservative manifesto – perhaps the manifesto equivalent to leaving a D-Day commemoration early.

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Over on Twitter, Adam Wagner noticed the same:

Of course, it must be noted that government has recently been disapplying the Act on a statute-by-statute basis, rather than making any full frontal attack.

But even taking that point at its highest, one would still expect an explicit manifesto commitment just for the claps and cheers of political and media supporters.

And this is a governing party that needs all the claps and cheers it can get.

It is a remarkable omission.

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And one suspects it is an accidental omission, for the governing party has little to gain by leaving it out, and something to gain electorally (or at least hold on to) by leaving it in.

If so, the possible significance of the omission is that the Conservative leadership, having got bored with the pretence that the Act will ever be repealed or substantially amended, simply are not thinking about it any more.

Their minds have moved on to other “red meat” for their more illiberal supporters.

But what it also means is that, in the highly unlikely event of the Conservatives staying in government after 4 July 2024, there is no manifesto commitment they can rely on in forcing any changes to the Act through the House of Lords.

What that in turn means is that the Human Rights Act will now be safe for the lifetime of the next parliament, whatever happens at the general election.

And that itself is quite a thing.

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Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy

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The coming constitutional excitements in the United States

2024 will be a test for the very notion of legitimacy at the basis of the United States constitution

A role-reversal? – a footnote to yesterday’s post

1st December 2023

Discussing yesterday’s post with a long-suffering friend, the following thought came to mind.

In the Rwanda judgment, the Supreme Court goes into detail as to the work needed on the ground to make the removals policy robust and practical; and, in turn, the government is seeking to use parliament to simply declare a policy legal instead of illegal.

This seems quite the role-reversal: the court setting out what needs to be done as a matter of policy, instead of the executive and the legislature, and the executive threatening to use the legislature to decide whether something is lawful.

Strange, if you think about it.

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The three elements of the Rwanda judgment that show how the United Kingdom government is now boxed in

30th November 2023

This post is about three elements of the judgment of the Supreme Court on the Rwanda policy – and how the Supreme Court decision means that the Rwanda scheme cannot be saved by legislation and treaties alone.

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These three parts indicate the difficulties for the government if they seek to use legislation so as to circumvent the judgment.

And two of these parts are about things which the Supreme Court did not decide.

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The first of these is about, of course, the European Convention on Human Rights (ECHR).

Here it should be noted that the court had granted permission for the Convention to be raised as a ground of cross-appeal:

(The government appealed – as they lost at the Court of Appeal – but some of the asylum seekers cross-appealed on points on which they had lost.)

The Supreme Court dutifully set out the Convention point in two paragraphs of the judgment:

You will see, however, that even in these paragraphs the court is careful to set out the Convention position alongside other applicable laws.

The court then makes this point about other applicable laws explicit:

In essence, the court is stating that the ECHR point does not stand alone.

And then in paragraph 106, towards the end of the judgment, the court says (with emphasis added):

This means that even if the ECHR did not apply directly, and even if the Human Rights Act did not exist, then the court would have decided the case the same way anyway, because the key legal principle is in other other applicable law.

That key legal principle is non-refoulement – that is the legal rule that requires that refugees are not returned to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. The court found on the evidence before it that there was such a risk if the asylum-seekers were removed to Rwanda.

It thereby follows that if the government were to bring forward legislation to limit the effect of the Convention in Rwanda removal cases it would not make any difference. The courts would just rely on other laws for the same point.

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And this brings us to the second part, which is rather fascinating.

This is the thought-provoking – indeed, provocative – paragraph 25:

Now this is quite the passage.

So-called “customary international law” is, almost by defintion, outside the power of any one nation state to change. It will apply anyway. As the court says:

“the significance of non-refoulment being a principle of customary international law is that it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect.”

A nation state may break that law, but they cannot unilaterally change it.

In other words there is no legislation whatsoever the government can bring forward that will mean that this rule would not apply to the United Kingdom.

Deftly, the court ends this point with “as we have not been addressed on this matter, we do not rely on it in our reasoning”.

This suggests that if the Rwanda policy is re-litigated to the Supreme Court, even if the government somehow excludes all the applicable legal instruments (and not just the ECHR and Human Rights Act) then the court may well still hold that the policy is unlawful, on the basis of customary international law.

That is quite the marker.

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The third part is about what the court did decide.

Here paragraph 105 is worth a very close look:

Here the court is stating that mere formal changes – such as placing the Rwanda policy on the basis of a treaty, as opposed to a flimsy MoU with no legal effect – will not, by themselves, render the policy lawful.

A treaty – which would provide for enforceable rights for individuals – would be necessary, but it would not be sufficient.

The real change required is that there be compelling evidence that, in practice, the Rwanda scheme will “produce accurate and fair decisions”.

And this is also outside of the scope of what the government can push through parliament: for no mere Act of Parliament can by itself change the situation on the ground in Rwanda.

Either the Rwanda scheme can be shown to produce the results required by the applicable laws – and, if need be, customary international law – or it cannot.

And if it cannot, it would seem that the Supreme Court will again hold the policy to be unlawful, whatever legislation is passed at Westminster.

This case now comes down to evidence, not law.

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Without relying on the ECHR the Supreme Court has placed the government in a rather difficult situation if the Rwanda scheme is to continue.

It would seem that only actual improvements in practical policy can now save the scheme – not clever-clever “notwithstanding” legislation.

And for a Supreme Court that had developed a reputation for being deferent to the executive and legislature on “policy” matters, this is a remarkable position.

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On yesterday’s Supreme Court judgment on the Rwanda policy

16th November 2023

Yesterday the Supreme Court handed down its appeal judgment in the Rwanda policy case.

For an informed view on the case, it is worth taking the time to watch Lord Reed, the President of the court, giving the summary of the judgment:

A court-approved summary can also be read here – and the full judgment is here.

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I wrote a couple of quick posts on the case yesterday for the mainstream media.

At the Financial Times, I did an “instant insight” (and it certainly had one of those two qualities) which emphasised two things which were immediately evident about the case.

First, it was remarkable – and, to me, a surprise – that the current Supreme Court under Lord Reed, which is generally regarded as deferent to the executive and legislature on “policy” matters, went unanimously against the government.

In essence, and to echo John Kander and Fred Ebb’s New York, New York: if a government cannot win on a “policy” matter before a Lord Reed Supreme Court, it cannot win that case anywhere.

Second, the court – perhaps showing more political sense than the entire cabinet – deftly avoided resting the case on the European Convention of Human Rights or the Human Rights Act.

Both instruments were, of course, mentioned in passing – but the effect of the judgment would have been just the same had neither instrument applied to the facts.

The court instead had regard to a range of other legal instruments and sources of law, including what is called customary international law.

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Over at Prospect, I approached the judgment from a different perspective, and I averred that the government could have won the case had they wanted to do so – by which I meant that the government could have negotiated a treaty with Rwanda that would have addressed the concerns ultimately expressed by the Supreme Court, instead of relying on a flimsy Memorandum of Understanding.

And this was not just a commentator-with-hindsight, it was what the government had been explicitly warned about a year ago by a House of Lords committee:

Some other commentators are not with me on this point – and they say that even a substantial treaty with Rwanda, which ensured there was no risk of asylum seekers being wrongly returned to their country of origin, may not have been enough to save the policy in this appeal.

Perhaps they are right and more would have been needed, but on any view such a treaty would have been necessary, if not sufficient: a non-enforceable MoU was inherently inadequate.  It would not have been relied upon had the government been actually serious about this policy.

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I am now thinking about writing a detailed post on the case from a constitutionalist perspective; but in the meantime, let me know below what you think about the decision and what you reckon to be its significance.

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The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday

10th November 2023

Even if the United Kingdom government wins on the lawfulness of the policy, it has already lost in respect of procedure

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Those interested in day-to-day politics in the United Kingdom are now looking to next Wednesday for the Supreme Court decision to be handed down on the lawfulness of the Rwanda policy.

The conventional wisdom is that if the current Home Secretary is still in post on Wednesday, a Supreme Court defeat for the government may be the basis for the Home Secretary to resign and campaign for the United Kingdom’s departure from the European Convention on Human Rights, or something.

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Nobody outside the court will know the result in advance and so the hand-down will be a moment of drama and excitement.

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On balance, any legal challenge to “policy” – that is an approach to general political problems – is likely to fail.

For an entire policy to be quashed it would require that each and every possible application of the policy in any concrete situation must be unlawful – that there is nothing that can be done to save a decision in a particular case.

Courts are reluctant to do this – not least because policy is usually the province of politicians, and judges will not want to trespass.

And the current Supreme Court under Lord Reed often seems cautious in dealing with “policy” challenges.

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There perhaps are reasons why this particular policy may be unlawful in the round – and if it was not arguable that the policy was itself unlawful the Supreme Court would not have heard the case – but it would not be shocking if the Supreme Court sides with the government and holds that some applications of the policy may be lawful, subject to certain conditions.

And here is the nub of the situation, which many in politics and the media seem to be overlooking: the courts have already held that there are strict and onerous conditions in particular cases.

These conditions are so strict and so onerous, it may well be that few if any asylum seekers will be relocated to Rwanda, even if the Supreme Court rules that the general policy is legal.

Followers of this blog may recall posts about this at the time of the initial High Court decision and the Court of Appeal decision:

As this blog has before averred, the government can both win and lose a legal case at the same time.

And even if the government wins on whether the policy is lawful, the procedural protections already insisted upon by the courts in the application of the Rwanda policy will present difficulties for a Home Secretary after next Wednesday.

Whoever that is.

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Understanding the significance of today’s Court of Appeal decision on the Rwanda removals policy

29th June 2023

Today the Court of Appeal ruled that the United Kingdom government’s controversial Rwanda removals policy was unlawful.

The judgment is here and there is a court-prepared summary here.

By saying the policy was itself unlawful, this means that each and every possible removal of any asylum seeker to Rwanda for their asylum application to be processed is currently unlawful. There are no current circumstances where a removal would be lawful.

The reason for the unlawfulness is that Rwanda is not a safe place for the processing of asylum claims:

This goes beyond the decision of the High Court that each particular removal happened to unlawful, on a case-by-case basis, because an appropriate process had not been followed. The High Court had said that the general policy was lawful, but each application of it so far had been unlawful.

The Court of Appeal now says that even the policy was unlawful. No removal, even with elaborate procedural compliance, would be allowed.

So both in practice and in the round the Rwanda removals policy has been held unlawful.

Opponents of the policy can celebrate – to an extent.

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Here are some further thoughts about what this decision signifies and does not signify.

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First, and from a practical perspective, the government’s far bigger problem was the initial High Court judgment. It does not really matter if a policy is (theoretically) lawful if the procedural protections required for each individual case are such that, in practice, removals are onerous and extraordinarily expensive.

I blogged about these practical problems when the High Court handed down its judgment:

Today’s ruling that the policy itself is unlawful makes no real difference to the government’s practical predicament with the policy in individual cases.

And the government appears not to have appealed the adverse parts of the High Court judgment.

The Home Secretary, and her media and political supporters, can pile into judges and lawyers because of today’s appeal judgment. But their more serious problems come from the last judgment, and not this one.

The Home Office is simply not capable or sufficiently resourced to remove many, if any, asylum seekers to Rwanda even if the policy was lawful.

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Second, the Court of Appeal decision today is likely to be appealed to the Supreme Court.

And, from an initial skim read of the relevant parts of the judgment, one would not be surprised if the Supreme Court reverses this Court of of Appeal decision.

Today’s Court of Appeal decision is not unanimous – the Lord Chief Justice was in the minority on the key question of whether Rwanda was a safe country for processing asylum claims.

The Supreme Court is (currently) sceptical of “policy” type legal challenges, and is likely thereby to defer to the Home Secretary’s view that Rwanda was a safe country for processing asylum claims – a view also shared by the two judges at the High Court and the Lord Chief Justice.

If the Home Office appeals to the Supreme Court then one suspects it is likely to win.

(Though it must be tempting to the Home Secretary to now abandon this – flawed – policy, and blame the judges.)

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Third, any appeal to the Supreme Court will take time. As it has taken until June 2023 for an appeal decision for a December 2022 High Court decision, it may be another six months before there is a Supreme Court hearing and decision.

And in that time, and unless a competent court decides otherwise, all removals will be unlawful as a matter of policy.

If the government wins at the Supreme Court then there would presumably be further delays while individual challenge-proof removal decisions are made.

In other words, the period for any actual removals before a general election next year will be short.

Even with a Supreme Court win, it will be that few if any asylum seekers are removed to Rwanda before a likely change of government.

(Though it cannot be readily assumed that an incoming government will change the policy.)

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Fourth, it should not be overlooked by opponents of the Rwanda removals policy that the appeal lost today unanimously and comprehensively on every other ground:

These defeats are not any cause for opponents of the policy to celebrate.

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Finally, there is a possibility of a work-around, which the government could adopt.

In the Abu Qatada case it was held by the courts that a deportation to Jordan for a trial was unlawful because of the use of evidence extracted by torture in the Jordanian legal system.

And so the United Kingdom government did a deal that the Jordanian legal system changed its ways so that the deportation could take place.

Abu Qatada was then, lawfully, deported.

(And then acquitted by the Jordanian court in the absence of such evidence.)

This deportation was presented by the United Kingdom government as a win against pesky human rights lawyers – when in fact the government had in reality complied with the judgment.

Similarly, the United Kingdom government may work with the Rwanda government to improve the asylum system, and correct the evidenced defects, so that concerns of the majority of the Court of Appeal are addressed.

No doubt the government would then similarly present any Rwanda removals on this basis as a win against pesky human rights lawyers – but again it would be the government complying with what the court would have approved.

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The judgment released today is long – and nobody commenting on the judgment today – politician or pundit – can have read it and properly digested it.

This post is thereby based only on initial thoughts and impressions.

That said, there is reason today for opponents of the Rwanda removals policy to celebrate.

But perhaps not too much.

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This has been cross-posted from The Empty City Substack.

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Telling the story of how the “serious disruption” public order statutory instrument was passed

14th June 2023

Here is a story about law-making told in different ways.

The law in question is a statutory instrument made under the Public Order Act 1986 – the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – which comes into force tomorrow.

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By way of background

A statutory instrument is what is called “secondary legislation” and it has the same effect as primary legislation, as long as it is within the scope of the primary legislation under which it is made.

Statutory instruments are, in effect, executive-made legislation.  They still have to have parliamentary approval, but they are not open to amendment and rarely have debate or a vote.

Often the parliamentary approval of statutory instruments goes through on the nod, but sometimes they need to have a positive vote in favour.

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The government’s version

The first way of telling the story is from the government’s perspective.

The statutory instrument was put to a vote in the House of Commons on Monday with the Home Secretary herself leading the debate.

At the end of the debate there was a contested vote, which the government won:The (elected) House of Commons having shown its approval, the House of Lords did not pass a “fatal” motion against the statutory instrument.

Instead the House of Lords passed a motion (merely) regretting the Statutory Instrument:

The vote (against the government) was as follows:

The House of Lords also had a specific vote on a fatal motion, which was defeated:
And when the official opposition was criticised by for not supporting the fatal motion, a frontbencher was unapologetic:

And this is the first way of telling this story: there was a Commons vote; the Lords showed disdain but did not exercise any veto inn view of the Commons vote; and so the statutory instrument became law as the result of a democratic legislative process.

Told this way, the story is about how laws can and are made by such a democratic legislative process

Nothing to see here.

But.

But but but.

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The constitutionalist version

There is another way of telling this story.

This account starts with the Public Order Act 2023 when it was a bill before parliament.

At a very late stage of the passage of that bill the government sought to amend it so as to include provisions that were substantially similar to what ended up in the statutory instrument passed this week.

The government failed to get those amendments through the House of Lords. and so they were dropped from the bill before it became an Act.

As a House of Lords committee noted:

The Home Office could not answer these basic questions:For this committee to say that it believes “this raises possible constitutional issues that the House may wish to consider” is serious stuff.

What had happened is that the Home Office, having failed to bounce parliament into accepting these amendments into primary legislation by very late amendments, has come up with this alternative approach.

Told this alternative way, the story is not about how laws can and are made by a democratic legislative process.

Instead, the story is about how a democratic legislative process can be frustrated and circumvented by the executive.

Instead of using primary legislation so as to make substantial (and illiberal) changes to the law, the government has used statutory instrument which cannot be amended or considered in detail, and has used its whipped House of Commons majority to face down Lords opposition.

Plenty to see here.

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The story may continue

Yet this is not how the story (told in either way) may end.

The thing about statutory instruments is that, unlike primary legislation, they can be challenged at the High Court.

This means that there can sometimes be a sort of constitutional see-saw: the convenience of using statutory instruments (as opposed to primary legislation) can be checked and balanced by an application for judicial review.

And that is what the group Liberty is doing, and its letter before claim is here.

In essence, the argument is that – notwithstanding the parliamentary approval – the statutory instrument is outside the scope of the relevant provisions of the Public Order Act 1986.

Liberty seems to have a good point, but any challenge to secondary legislation is legally difficult and it is rare that any such challenge ever succeeds.

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The moral of the story?

The moral of the story, however it is told, is perhaps about the general weakness of our constitutional arrangements in respect of limitations placed upon rights and liberties.

A government, using wide enabling legislation, can put legislation into place that it cannot achieve by passing primary legislation.

This cannot be the right way of doing things, even if Labour is correct about these illiberal measures having the support of the House of Commons.

There are some things our constitutional arrangements do well – and here we can wave at Boris Johnson and Elizabeth Truss having both been found repugnant and spat out by our body politic.

But there are things our constitutional arrangements do badly – and the increasing use (and abuse) by the government of secondary legislation to do things they cannot (or will not) get otherwise enacted in primary legislation worrying.

And a government casually and/or cynically using (and abusing) wide enabling powers is not a story that usually ends well.

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